New Reporting and Analysis on the 2.2 Million Cases Pending in the US Immigration Court Backlog

New reports about the causes and consequences of the US immigration court backlog are drawing renewed attention to this seemingly intractable problem. Simply put, more immigration cases are started each year than immigration judges can complete. Over time, this has led to ballooning numbers of pending cases which put pressure on judges and the courts, while also having real consequences for migrants living in legal limbo¹.

First, some recent numbers about the backlog. The backlog increased significantly during the Trump years. None of the Trump administration’s most controversial immigration policies—including the Migrant Protection Protocols, Zero Tolerance border enforcement, the Muslim Ban, etc.—managed to reduce the court backlog. In fact, the backlog increased from just over 500,000 at the end of FY 2016 (i.e. the start of October 2016) to 1.26 million by the end of FY 2020, an astounding 2.5x increase over four years.

But the biggest total year-over-year increase happened during the Biden administration. Between FY 2021 and FY 2022, the backlog increased by 478,898 cases from about 1.5 million to 1.9 million. Naturally, you can see these data on TRAC’s backlog tool online here.

But the backlog is more than just numbers. Reporter Anagilmara Vilchez published an article last week that highlighted some of these human consequences. Vilchez shares the story of a Nicaraguan asylum seeker whose case hasn’t budged in five years, highlighting the fact that “since his application hasn't progressed, he said he can't move on — and can't heal from what he left behind.”

Because the man (unnamed for safety reasons) merely has a case pending and doesn’t have a result, he is limited in his ability to go to school, settle down, or get a more stable job. A denial, though regrettable, might at least provide some clarity about the future.

The first time I heard of the immigration backlog it was mentioned indirectly, not so much in name (i.e. “the backlog), but as an epiphenomenon of an absurd system. I was interviewing an immigration attorney in Ohio who represented migrants in removal proceedings for my dissertation research. The attorney mentioned that, at the time (this was in 2016), he was getting hearing dates for 2019 and 2020—three to four years in the future.

I vividly recall the attorney emphasizing just how much can change in a person’s life in a few years, particularly for migrants in their late teens and twenties, when life-course questions about a career, college, marriage, kids, where to live, and buying a home are front and center in one’s consciousness. Just imagine any five-year period of your own life, he said. What changed for you? And what would be different if you had to put your entire life and the life of your family on hold?

His words echoed in other parts of my research that year. I interviewed attorneys with clients who were unable to visit their parents before they passed away in their home country. I interviewed attorneys who had clients with children who graduated high school and now were now stuck without a clear future but also deeply (and, to parents, sometimes worryingly) entrenched in American youth culture. What would happen if they lost their case now? Would they be deported back to a country where gangs might target this family under the assumption that life in the United States meant that they possessed more money?

What these examples signify is that the length of time to case completion can, itself, have wide-ranging consequences that are somewhat independent of the actual legal outcome of the case. These consequences, not merely the fact of the quantitative growth of the immigration court backlog, make the backlog a particularly important yet fraught topic of discussion.

Donald Kerwin and Evin Millet, both from the Center for Migration Studies (CMS), engaged with this important yet fraught topic in a brand new article titled “The US Immigration Courts, Dumping Ground for the Nation’s Systemic Immigration Failures: The Causes, Composition, and Politically Difficult Solutions to the Court Backlog.“ You can find iton the CMS website.

I recommend this article specifically because it is relatively short, dense, and serves very much as a reference guide of sorts for the current state of the immigration courts. It also provides specific policy solutions, something I am generally pretty awful at, but which I admire in others.

Their article is too dense to be summarized here, but I do want to highlight three interesting points.

First, there has been a significant shift in the past decade regarding which agency is initiating new deportation cases in court.² Whereas in 2011, Immigration and Customs Enforcement (ICE) started most new cases, today Customs and Border Protection (CBP) is issuing by far the most NTAs. In fact, according to this data, ICE issued fewer NTAs than USCIS every year since 2015. USCIS is what we might call the “immigration benefits” wing of DHS, so the fact that they are issuing so many more NTA than the “enforcement wing” of ICE is significant.

Figure 4 in Kerwin and Millet.

Second, Kerwin and Millet compare Congress’s paltry funding of the immigration courts with its much larger funding of ICE and CBP. In 2023, for instance, the EOIR (the agency that runs the courts) received $860 million compared to CBP’s $20.8 billion and ICE’s $9.1 billion. The practical effect of this budget inequality is that the courts have too few immigration judges—and perhaps even more importantly, too few support staff throughout—relative to the number of new cases coming in.

Kerwin and Millet suggest as a policy solution that funding of the courts should be tied directly to the funding of the other two agencies. They argue that “Congress should benchmark EOIR’s budget at 6 percent of the combined budgets of CBP and ICE, which would double the current ratio of EOIR to CBP/ICE funding.” This is an interesting argument, and an entirely logical one—although others might argue that reducing funding throughout and shifting away from an enforcement-centric system is a more achievable goal.

Third, Kerwin and Millet argue for a more independent Article 1 immigration court that would vest “immigration judges with greater independence and authority to manage their dockets and to complete cases.” They are not the first to do so, obviously, but it’s worth mentioning because it is such an idiosyncratic—and deeply problematic—quirk of the immigration court system.

A little-known fact about the immigration courts is that they are, shall we say, almost not courts. The courts are housed within the Department of Justice and staffed by judges that are often treated more like employees that can be told what to do rather than judges that have independent decision-making authority.

A bill to make the courts independent Article 1 courts was introduced last year by Representative Zoe Lofgren, supported by the American Bar Association, the American Immigration Lawyers Association, the National Association of Immigration Judges, and many others. I’m hardly qualified to speculate about its chances of passing, but this shows that the immigration courts are on the minds of lawmakers.

A decade ago, there was relatively little reporting and research on the immigration court system. Today, the immigration courts have moved closer to the center of the national debate about how to reform the immigration system. The urgency of that debate is only heightened by the fact that 2.2 million people—real people with lives that continue to move on even when their cases do not—are waiting to find out if they are going to be allowed to remain in this country lawfully.

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1. The phrase “legal limbo” has reached the status of a cliché at this point. It is vague, overused, and somewhat sentimental. And yet I still hear this phrase used often enough to suspect that it carries weight for people, so, despite my complaints, I’m using it here. What do you think: should we drop this phrase or keep it?

2. New cases are initiated in court by a Notice to Appear or “NTA” for short.